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Ask David C. Garner Your Own Question
David C. Garner
David C. Garner, Attorney
Category: Legal
Satisfied Customers: 1043
Experience:  JD with Distinction, Admitted to practice in California
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I was recently denied the purchase of a gun. I have bought

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I was recently denied the purchase of a gun. I have bought several guns over the past 25 years with no problems arising from the background checks. After much prodding of various agencies, I was able to determine that the problem arose from a conviction from 1978 California HS12305(possession of an explosive). My record shows conviction of HS12305 with suspended sentence and 2 years probation. The next 2 entries are as follows from 1980 (after probation complete) "12305 conviction set aside & dismissed per 1203.4PC", and "reduced to misdemeanor / 17 PC". I have been told recently that the court didn't have the authority to reduce the charge to a misdemeanor as it is considered a straight felony.

My question is this: Was the law at the time(1980) different so as to allow this?

David C. Garner :

Are you there?

Customer:

Yes

David C. Garner :

Ok... based on my review of Health and Safety code section 12305, it is a straight felony and not a wobbler. Let me check something for you. Stand by.

David C. Garner :

Still working....stand by.

David C. Garner :

Ok, I can find no evidence that this offense was ever a "wobbler" meaning that it could be or could be reduced to a misdemeanor. That said, even if it could, reduction to a misdemeanor under 17(b) does not restore the prohibition against firearm ownership.

David C. Garner :

Basically they reduced and expunged a felony that could not be.

David C. Garner :

You are extradoirinarily lucky.

Customer:

Could there have been anything else in the plea deal?

Customer:

FYI 12303 & 12303.3 were dismissed in the plea deal.

Customer:

Am I now a felon in possession of a firearm though? I have bought several guns legally over the years until this last NICS check.

David C. Garner :

It would depend on exactly what happened. I would suggest requesting a transcript and any and all documents if at all possible to analyze exactly what happened that day.

David C. Garner :

It is quite possible that you could be a felon in possession. I would suggest that you contact the DOJ and ask for a copy of your rap sheet.

Customer:

That's where I got the information in my initial question.

Customer:

There is very little information contained in the record from California DOJ.

David C. Garner :

Then the next step is to try and get the records from the court. It is possible that you have been able to purchase weapons over the years as computer technology had not caught up with rap sheets.

Customer:

I was told that the court transcripts were unavailable due to the time passed.

David C. Garner :

That is possible. This is a difficult situaiton and there is not a clear answer I can give you. I do not think that you would be culpable for the firearms you have based on the documentation you can show, but it may be a block to future purchases that you cannot resolve.

Customer:

From my own research, I know that the 12303 & 12303.3 are both wobblers & I can't picture my lawyer at the time(sharp guy) having me plead to a felony instead of a misdemeanor. Could it be an error in when it was recorded?

David C. Garner :

That is possible. But without the transcripts or records, there is no way to tell. The paper trail you indicate suggests a wobbler and perhaps a clerk error in recording it. I'm not sure what the process would be to correct that at this point. You MIGHT be able to hire an attorney to put it on calendar to correct the record since it is clearly in error. You run the risk then of having it corrected not in your favor.

David C. Garner :

Do you have any convictions since?

Customer:

No

David C. Garner :

Then you could argue the clerk made an error and recorded the wrong charge - that the court correctly acted in 17b'ing a wobbler and the error is the court's and its to your detriment. Since you have a clean record it puts the burden on the court. I would talk to a local attorney, but they will be scratching their head at first too.

David C. Garner :

This is a very unusual case.

Customer:

Yes, very strange. I've been going about life for the last 35 years believing this was behind me. I guess I'll find a local guy & go from there.

Customer:

Thanks for the quick response,

Customer:

Chris

David C. Garner :

I did the best I could. I will work on this and if I can find more information, I will reply again to the question.

David C. Garner :

Thanks for the opportunity to help.

David C. Garner :

If you found this helpful, please rate my efforts. Take care!!

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